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Exhibit 10.4 Loan No. 99-407
PROMISSORY NOTE C
$5,000,000.00 September 20, 2000
1. Promise to Pay.
FOR VALUE RECEIVED, BALANCED CARE REALTY AT STATE COLLEGE, INC., a
Delaware corporation, BALANCED CARE REALTY AT ALTOONA, INC., a Delaware
corporation, BALANCED CARE REALTY AT LEWISTOWN, INC., a Delaware corporation,
BALANCED CARE REALTY AT READING, INC., a Delaware corporation, BALANCED CARE
REALTY AT BERWICK, INC., a Delaware corporation, BALANCED CARE REALTY AT
PECKVILLE, INC., a Delaware corporation, BALANCED CARE REALTY AT SCRANTON, INC.,
a Delaware corporation, BALANCED CARE REALTY AT MARTINSBURG, INC., a Delaware
corporation, BALANCED CARE REALTY AT MAUMELLE, INC., a Delaware corporation,
BALANCED CARE REALTY AT SHERWOOD, INC., a Delaware corporation, BALANCED CARE
REALTY AT MOUNTAIN HOME, INC., a Delaware corporation and BALANCED CARE REALTY
AT MANSFIELD, INC., a Delaware corporation (collectively "Maker"), each of which
has its address c/o Balanced Care Corporation, 1215 Manor Drive, Mechanicsburg,
Pennsylvania 17055, Attention: Clint Fegan, Chief Financial Officer, jointly and
severally promises to pay to the order of HELLER HEALTHCARE FINANCE, INC., a
Delaware corporation, and its successors and assigns ("Holder") the sum of Five
Million and No/100 Dollars ($5,000,000.00), together with all other amounts
added thereto pursuant to this Promissory Note C ("this Note") or otherwise
payable to Holder under the Loan Documents (as hereinafter defined) (or so much
thereof as may from time to time be outstanding), together with interest thereon
as hereinafter set forth, all payable in lawful money of the United States of
America (collectively, the "Loan"). Payments shall be made to Holder at 500 West
Monroe Street, Attention: Real Estate Financial Services, Chicago, Illinois
60661 (or such other address as Holder may hereafter designate in writing to
Maker).
This Note is secured by, among other things, the Mortgages encumbering
the Project. This Note, the Second Amended and Restated Promissory Note A made
by Maker in favor of Holder of even date herewith in the original principal
amount of Thirty Million Six Hundred Thousand and No/100 Dollars
($30,600,000.00) ("Note A"), the Second Amended and Restated Subordinated
Promissory Note B made by Maker in favor of Holder of even date herewith in the
original principal amount of Six Million Four Hundred Thousand and No/100
Dollars ($6,400,000.00) ("Note B"),
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the Mortgages, the Loan Agreement dated December 30, 1999, between Maker and
Holder, as amended by the Amendment to Loan Documents dated April 27, 2000
between Maker and Holder and the Second Amendment to Loan Documents of even date
herewith between Maker and Holder (as so amended, the "Loan Agreement") and any
other documents evidencing or securing the Loan or executed in connection
therewith, and any modification, renewal or extension of any of the foregoing
are collectively called the "Loan Documents". Except as otherwise provided
herein, capitalized terms used in this Note shall have the same meanings as are
assigned to such terms in the Loan Agreement.
2. Interest.
So long as no Event of Default (as hereinafter defined) exists,
interest shall accrue on the principal balance hereof from time to time
outstanding and Maker shall pay interest thereon at a rate equal to a floating
rate per annum equal to the Corporate Base Rate plus two percent (2%) (the
aggregate rate referred to as the "Interest Rate"). "Corporate Base Rate" shall
mean the interest rate announced from time to time by Bank One N.A. as its
Corporate Base Rate in effect at its main office in Chicago, Illinois. Interest
shall be calculated based on a 360 day year and charged for the actual number of
days elapsed.
3. Payment.
(a) Maker shall pay interest on the outstanding principal
amount of this Note computed at the Interest Rate in arrears on
November 15, 2000; and
(b) This Note shall be due and payable on or before November
15, 2000, or any earlier date on which this Note shall be required to
be paid in full, whether by acceleration or otherwise (the "Maturity
Date").
4. Intentionally Omitted.
5. Prepayment.
Maker may prepay this Note in full or in part at any time; provided
Maker gives Holder at least five (5) days prior written notice thereof.
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6. Exit Fee.
As additional consideration for making the Loan pursuant to the Loan
Agreement, Maker shall pay Holder the Additional Exit Fee as provided in the
Loan Agreement unless this Note is repaid in full on or before October 31, 2000.
7. Default.
7.1. Events of Default.
Any of the following shall constitute an "Event of Default" under this
Note: (a) failure to pay any amounts owed pursuant to this Note, Note A or Note
B within ten (10) calendar days after such payment is due; or (b) the occurrence
of any default under any of the other Loan Documents, which, continues uncured
default beyond any applicable grace or cure period.
7.2. Remedies.
So long as an Event of Default remains outstanding: (a) interest shall
accrue at a rate equal to the Interest Rate plus four percent (4%) per annum
(the "Default Rate"); (b) Holder may, at its option and without notice (such
notice being expressly waived), declare this Note immediately due and payable;
and (c) Holder may pursue all rights and remedies available under the Mortgages
or any other Loan Documents. Holder's rights, remedies and powers, as provided
in this Note and the other Loan Documents, are cumulative and concurrent, and
may be pursued singly, successively or together against Maker, any guarantor of
the Loan, the security described in the Loan Documents, and any other security
given at any time to secure the payment hereof, all at the sole discretion of
Holder. Additionally, Holder may resort to every other right or remedy available
at law or in equity without first exhausting the rights and remedies contained
herein, all in Holder's sole discretion. Failure of Holder, for any period of
time or on more than one occasion, to exercise its option to accelerate the
Maturity Date shall not constitute a waiver of the right to exercise the same at
any time during the continued existence of any Event of Default or any
subsequent Event of Default.
If any attorney is engaged: (i) to collect the Loan or any sums due
under the Loan Documents, whether or not legal proceedings are thereafter
instituted by Holder; (ii) to represent Holder in any bankruptcy,
reorganization, receivership or other proceedings affecting creditors' rights
and involving a claim under this Note; (iii) to protect the liens of any
Mortgage or any of the Loan Documents; (iv) to represent Holder in any other
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proceedings whatsoever in connection with any Mortgage or any of the Loan
Documents including post judgment proceedings to enforce any judgment related to
the Loan Documents; or (v) in connection with seeking an out-of-court workout or
settlement of any of the foregoing, then Maker shall pay to Holder all
reasonable costs, attorneys' fees and expenses in connection therewith, in
addition to all other amounts due hereunder.
8. Late Charge.
If payments of principal or interest due under this Note, or any other
amounts due under the other Loan Documents, are not timely made and remain
overdue for a period of ten (10) days, Maker, without notice or demand by
Holder, promptly shall pay an amount ("Late Charge") equal to four percent (4%)
of each delinquent payment.
9. Governing Law; Severability.
This Note shall be governed by and construed in accordance with the
internal laws of the State of Illinois. The invalidity, illegality or
unenforceability of any provision of this Note shall not affect or impair the
validity, legality or enforceability of the remainder of this Note, and to this
end, the provisions of this Note are declared to be severable.
10. Waiver.
Maker, for itself and all endorsers, guarantors and sureties of this
Note, and their respective heirs, legal representatives, successors and assigns,
hereby waives presentment for payment, demand, notice of nonpayment, notice of
dishonor, protest of any dishonor, notice of protest and protest of this Note,
and all other notices in connection with the delivery, acceptance, performance,
default or enforcement of the payment of this Note, and agrees that their
respective liability shall be unconditional and without regard to the liability
of any other party and shall not be in any manner affected by any indulgence,
extension of time, renewal, waiver or modification granted or consented to by
Holder. Maker, for itself and all endorsers, guarantors and sureties of this
Note and their respective heirs, legal representatives, successors and assigns,
hereby consents to every extension of time, renewal, waiver or modification that
may be granted by Holder with respect to the payment or other provisions of this
Note, and to the release of any makers, endorsers, guarantors or sureties, and
their heirs, legal representatives, successors and assigns, and of any
collateral given to secure the payment hereof, or any part hereof, with or
without substitution, and agrees that additional makers,
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endorsers, guarantors or sureties and their heirs, legal representatives,
successors and assigns, may become parties hereto without notice to Maker or to
any endorser, guarantor or surety and without affecting the liability of any of
them.
11. Security, Application of Payments.
This Note is secured by the liens, encumbrances and obligations created
hereby and by the other Loan Documents and the terms and provisions of the other
Loan Documents are hereby incorporated herein. Payments will be applied, at
Holder's option, first to any fees, expenses or other costs Maker is obligated
to pay under Note A or the other Loan Documents, second to current interest due
on Note A, third to any past due interest payable under Note A, fourth to
current interest due on Note B, fifth to any past due interest payable under
Note B, sixth to interest due on this Note, seventh to the outstanding principal
balance of Note A, eighth to the outstanding principal balance of Note B, ninth
to the outstanding principal balance of this Note and tenth to the Exit Fee and
the Additional Exit Fee (as defined in the Loan Agreement); provided, however,
that all interest on and the principal amount of this Note (and the Additional
Exit Fee, if any) may be prepaid in whole or in part at any time, and the
foregoing application of payments shall not apply, if Borrower designates in its
notice required under Section 5 of this Note in connection with the prepayment
of sums due under this Note that such prepayments should be applied solely to
amounts due under this Note.
12. Miscellaneous.
12.1. Amendments.
This Note may not be terminated or amended orally, but only by a
termination or amendment in writing signed by Holder and Maker.
12.2. Lawful Rate of Interest.
In no event whatsoever shall the amount of interest paid or agreed to
be paid to Holder pursuant to this Note or any of the Loan Documents exceed the
highest lawful rate of interest permissible under applicable law. If, from any
circumstances whatsoever, fulfillment of any provision of this Note and the
other Loan Documents shall involve exceeding the lawful rate of interest which a
court of competent jurisdiction may deem applicable hereto ("Excess Interest"),
then ipso facto, the obligation to be fulfilled shall be reduced to the highest
lawful rate of interest permissible under such law and if, for any reason
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whatsoever, Holder shall receive, as interest, an amount which would be deemed
unlawful under such applicable law, such interest shall be applied to the Loan
(whether or not due and payable), and not to the payment of interest, or
refunded to Maker if such Loan has been paid in full. Neither Maker nor any
guarantor, endorser or surety nor their heirs, legal representatives, successors
or assigns shall have any action against Holder for any damages whatsoever
arising out of the payment or collection of any such Excess Interest.
12.3. Captions.
The captions of the Paragraphs of this Note are for convenience of
reference only and shall not be deemed to modify, explain, enlarge or restrict
any of the provisions hereof.
12.4. Notices.
Notices shall be given under this Note in conformity with the terms and
conditions of the Loan Agreement.
12.5. Intentionally Omitted.
12.6. Time of Essence.
Time is of the essence of this Note and the performance of each of the
covenants and agreements contained herein.
13. Intentionally Omitted.
14. Sale of Loan.
Holder, at any time and without the consent of Maker, may grant
participations in or sell, transfer, assign and convey all or any portion of its
right, title and interest in and to the Loan, this Note, the Mortgages and the
other Loan Documents, any guaranties given in connection with the Loan and any
collateral given to secure the Loan.
15. Consent to Jurisdiction.
MAKER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF COOK, STATE OF ILLINOIS AND IRREVOCABLY AGREES
THAT, SUBJECT TO HOLDER'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS NOTE OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH
COURTS. MAKER EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. MAKER HEREBY
WAIVES PERSONAL SERVICE OF ANY AND ALL
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PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON MAKER BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO MAKER, AT
THE ADDRESS SET FORTH IN THIS NOTE AND SERVICE SO MADE SHALL BE COMPLETE TEN
(10) DAYS AFTER THE SAME HAS BEEN POSTED.
16. Jury Trial Waiver.
MAKER, AND HOLDER BY ITS ACCEPTANCE OF THIS NOTE, HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR
RELATED TO, THE SUBJECT MATTER OF THIS NOTE AND THE BUSINESS RELATIONSHIP THAT
IS BEING ESTABLISHED. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY
MADE BY MAKER AND BY HOLDER, AND MAKER ACKNOWLEDGES THAT NEITHER HOLDER NOR ANY
PERSON ACTING ON BEHALF OF HOLDER HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE
THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY MODIFY OR
NULLIFY ITS EFFECT. MAKER AND HOLDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT MAKER AND HOLDER HAVE
ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS NOTE AND THAT EACH OF THEM
WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. MAKER AND
HOLDER FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF
THIS WAIVER BY INDEPENDENT LEGAL COUNSEL.
[signatures on following pages]
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IN WITNESS WHEREOF, Maker has executed this Note or has caused the same
to be executed by its duly authorized representatives as of the date first set
forth above.
MAKER:
BALANCED CARE REALTY AT STATE
COLLEGE, INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT ALTOONA,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT LEWISTOWN,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT READING,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT BERWICK,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT PECKVILLE,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
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BALANCED CARE REALTY AT SCRANTON,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT MARTINSBURG,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT MAUMELLE,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT SHERWOOD,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT MOUNTAIN
HOME, INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
BALANCED CARE REALTY AT MANSFIELD,
INC., a Delaware corporation
By/s/Robin L. Barber
Printed Name Robin L. Barber
Its Vice President and Secretary
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